When President Obama approves a drone strike against someone he
identifies as a terrorist, John Brennan explained at his confirmation
hearing last week, the missile fired from that unmanned aircraft is
delivering prevention, not punishment.

"We only take such actions as a last resort to save lives when
there's no other alternative," said Brennan, the counterterrorism adviser
Obama has picked to run the CIA.

A Justice Department white paper leaked a few days before
Brennan's hearing likewise describes death by drone as an "act of national
self-defense," part of an "armed conflict" with al-Qaida and its allies.
Yet the white paper also speaks of due process for American citizens
condemned to death by the president, a requirement it says can be met
through secret discussions within the executive branch. This contradiction
at the heart of Obama's "targeted killing" policy, combining the rules of
the battlefield with the rules of the courtroom, makes a muddle of both.

Last month, in a decision that upheld the president's right to
keep the memos summarized in the DOJ white paper under wraps, U.S.
District Judge Colleen McMahon noted that "the concept of due process of
law," guaranteed by the Fifth Amendment, "has never been understood to
apply to combatants on the battlefield actively engaged in armed combat
against the United States." That is how the Obama administration describes
members of al-Qaida and allied groups: Regardless of nationality, they are
enemy combatants who legally can be killed at will, wherever they happen
to be.

Yet in a speech last March, Attorney General Eric Holder argued
not that the Due Process Clause is irrelevant in this context but that
President Obama's kill orders comply with it.

"The Constitution's guarantee of due process is ironclad, and it
is essential," Holder said, but "due process and judicial process are not
one and the same." Similarly, in an interview with CNN last September,
Obama claimed the procedures for identifying people subject to summary
execution by drone, though confined to the executive branch, are
"extensive" enough to comply with "our traditions of rule of law and due
process."

By saying that due process applies to drone strikes on suspected
terrorists in places such as Pakistan and Yemen, the administration
implicitly concedes that such operations are fundamentally different from
shooting an enemy soldier during a battle. In the latter case, both the
identity of the enemy and the threat he poses are clear, and so is the
argument for self-defense. When it comes to people marked for death by the
president, however, all of these issues may be matters of dispute.

During Brennan's confirmation hearing, Dianne Feinstein, the
California Democrat who chairs the Senate Intelligence Committee, was at
pains to portray Anwar al-Awlaki, one of the three Americans killed by
drones so far, as "a senior operational leader" of al-Qaida who posed "an
imminent threat" -- the sort of target discussed in the DOJ white paper.
Feinstein herself had to testify on these points because neither Brennan
nor any other administration official will discuss the evidence against
people targeted by drones.

The lack of transparency is especially troubling because the
administration's definition of "imminent threat" does not hinge on plans
for a specific attack. Furthermore, the white paper explicitly leaves open
the possibility that the criteria it describes, while sufficient to
justify a presidential death warrant, may not be necessary, and it
acknowledges no geographic limit on Obama's license to kill. Brennan
conspicuously dodged the question of whether the president can order hits
on U.S. soil.

Given this alarming combination of deadliness and silence, it is
not hard to see why, as McMahon put it, "some Americans question the power
of the executive to make a unilateral and unreviewable decision to kill an
American citizen who is not actively engaged in armed combat operations
against this country." The real puzzle is why so many Americans seem happy
to trust the president with this power.